Macsenti v. Becker

• Decision Date: 22 January 2001
• Docket Number: 99-6012,Nos. 98-6485,s. 98-6485
• Citation: 237 F.3d 1223
• Parties: (10th Cir. 2001) MARK MACSENTI, Plaintiff-Appellee and Cross- Appellant, v. JON D. BECKER, D.D.S. Defendant-Appellant and Cross-Appellee, HEATHER DAVIS, Defendant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1223

237 F.3d 1223 (10th Cir. 2001)

MARK MACSENTI, Plaintiff-Appellee and Cross- Appellant, v. JON D. BECKER, D.D.S. Defendant-Appellant and Cross-Appellee, HEATHER DAVIS, Defendant.

Nos. 98-6485, 99-6012

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 22, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. CV-97-1398-C)

[Copyrighted Material Omitted] Robert Todd Goolsby, Goolsby, Olson & Proctor, Oklahoma City, Oklahoma (Kirk Olson and David Proctor with him on the briefs) for Appellee and Cross-Appellant.

Jack S. Dawson, Miller Dollarhide, Oklahoma City, Oklahoma, (James A. Scimeca and Steven E. Bracklein with him on the briefs) for Appellant and Cross-Appellee.

Before EBEL, HOLLOWAY and HENRY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff/appellee Mark Macsenti sued his dentist, defendant/appellant Jon Becker, and Becker's assistant, Heather Davis, for injuries he allegedly suffered during a 1996 dental procedure performed in Becker's office in Clinton, Oklahoma. Macsenti sought relief under theories of negligence and intentional infliction of emotional distress, inter alia. Jurisdiction in the district court was based on diversity of citizenship. At the close of the plaintiff's evidence, the district judge granted judgment as a matter of law in favor of Heather Davis, but denied a motion by Becker for such a judgment. (Hereinafter in this opinion we will use "defendant" only to refer to Dr. Becker.) The jury ultimately awarded compensatory and punitive damages to plaintiff Macsenti, and Becker's post-trial motions challenging the verdict were denied. Becker now brings this appeal from the district court's judgment, invoking our jurisdiction under 28 U.S.C. 1291. The cross-appeal of plaintiff challenges the denial of prejudgment interest by the trial judge.

I

Defendant Becker had a dental practice in Clinton, Oklahoma. Plaintiff Macsenti went in to defendant's office for removal of one molar and for dental implants on July 15, 1996, about 9:00 a.m., a procedure expected to take no more than three hours. The procedure was not begun until plaintiff had already been in the office for some time. Defendant had decided to place plaintiff under "conscious sedation" for the procedure, and the first thing done was to order medications, which were picked up from a local pharmacy. About 11:00 a.m. plaintiff was given the medications, whose trade names were halcion and mepergan fortes. According to plaintiff's evidence, he was also put on nitrous oxide at the same time and remained under nitrous oxide for most of the remainder of the day and evening. One of plaintiff's experts, Dr. Sullivan, testified the particular procedure defendant was to perform should take less than an hour. III App. at 661. The procedure could have been done without the use of halcion, mepergan fortis and nitrous oxide. Id. at 662.

Ms. Shirley Teague testified that the day of plaintiff's procedure was the first and last day of her employment as defendant's dental assistant. II App. 343. Ms. Teague had recently completed a "dental lab" program at Moore/Norman Vo-Tech School for one year. On July 15, 1996 Heather Davis was at defendant's dental office, and she showed Teague how he liked his tray of instruments set up. Teague saw plaintiff Macsenti first around 11:00 a.m. Id. at 345. Teague and Davis assisted Dr. Becker with a couple of other patients early that day. According to Teague, however, Davis was not present after defendant actually began to work on plaintiff. After Macsenti came in, Teague and Davis took him into cubicle 2, Davis draped him with a cloth in the chair and gave him medication. Davis put the nitrous oxide on him, turned it on and they left Macsenti there. Id. at 346. At 1:00 p.m. Ms. Davis took the nitrous oxide off of Macsenti, sat him up, and gave him another pill. Id. at 347. Shortly after that, plaintiff Macsenti was laid back down, and Dr. Becker and Teague began the procedure on him, which consisted of doing dental implants. Id. The first part of the procedure went well but was "just slow going." Id. at 348. When Dr. Becker started the second post holes, he pushed away from the patient. Dr. Becker had rollers on his chair and he "pushed away from the patient pushed away and passed out he pushed away and dropped the drill. He was just out cold." Id.

Teague said that she was stunned and did not know what to do. Dr. Becker was out for a while, ten minutes or so. He woke up and started the procedure again. Id. Defendant Becker used the drill again on Macsenti, and did not re-sterilize it before he used it on him. He started again, but he did not last long because he passed out again. Id. at 349. He woke back up and started again and passed out again. Teague said that she shook defendant, woke him up and asked him to step out in the hall. Id. at 349-50. To this point in time, defendant Becker had passed out about three times. Becker's appearance at this time was that he was staggering and as he got up to leave, he fell and knocked the tray off. Plaintiff Macsenti was still on nitrous oxide. Teague said that in the hall she had a conversation with defendant Becker, telling him she was concerned for him and the patient. She testified that defendant Becker said he was tired, that he had stayed up all night and was writing a thesis. Id. at 350. Ms. Teague said that defendant Becker assured her everything would be all right and they went back in and Teague picked up the equipment on the floor and got more sterilized packages and they started the procedure again.

Defendant passed out again, and this happened several times. Id. at 351. Teague asked Ms. Callaway, the receptionist, where Heather Davis was, and was told that Davis and Mrs. Becker had left and were in Oklahoma City. Teague asked Ms. Callaway if Becker had any medical problems such as diabetes or if he was on drugs, but Ms. Callaway did not know and said that this condition had never happened before. Id. at 351-52. At these times, plaintiff Macsenti was still on nitrous oxide. Every time they started the procedure again, defendant Becker would pass out. Ms. Teague said that her idea was that Dr. Becker passed out or fell asleep "10 or 15 times." Id. at 352. This was all while plaintiff Macsenti was on nitrous oxide. Id. At about this time Dr. Becker's daughter came to the office for some money, and Teague sent her to get some coffee for Dr. Becker. Teague put Dr. Becker in cubicle 1, and he went to sleep there for approximately 30 minutes. Id. Teague shook Becker to wake him up, spilled some coffee on him , and Becker "giggled" at Teague.

Dr. Becker had a problem with his headlight about 3:30 or 4:00 p.m. Teague testified that she had a conversation with Dr. Becker's wife on the phone, explaining to her that Dr. Becker was literally passing out, and Mrs. Becker told Teague that she should handle the problem, that Heather Davis was on the way. Id. at 356. Teague turned down what she believed was the nitrous oxide. Dr. Becker had problems, apparently, with the drill. Id. at 357. He then said he would be right back, and got up and walked out. Ms. Callaway went out the back door to the parking area looking for Dr. Becker, and she came back in and told Teague that Dr. Becker's car was gone. Macsenti was still on nitrous oxide. Id. at 358. The departure of Dr. Becker occurred at approximately 6:00 p.m. At around that time Callaway and Teague were discussing what they should do. Callaway then went outside and Dr. Becker's car was there but he could not be found.

Later Becker came back with another gentleman, and at this time plaintiff Macsenti was still on nitrous oxide. Teague and defendant Becker began the procedure again. Heather Davis came in and asked Teague if she was tired and she answered that she was. Teague explained to Davis what had been happening to Dr. Becker. Davis told Teague she could go home, and she left about 8:00 in the evening. Id. at 360. On cross-examination, Ms. Teague testified that Macsenti had the nitrous oxide mask off that afternoon when he went to the men's room and also when he was given medication at 1:00 p.m. Id. at 367. On cross-examination Ms. Teague restated her testimony that defendant passed out for some ten minutes and one time he was asleep thirty minutes, and Teague was asked whether she saw these instances some 10 to 15 times, and replied: "Yes, sir." Id. at 371.

It is undisputed that Dr. Becker left the office around 6:00 p.m. to appear in municipal court on a charge of driving under suspension, even though plaintiff was still in the chair and the procedure had not been completed. When defendant drove back to his office from the court appearance he was detained by the police and taken to the station to be booked on a new charge of driving under suspension. He finally returned to the office after 7:00 p.m. and completed plaintiff's procedure. Plaintiff was finally released about 9:00 p.m.

Plaintiff Macsenti testified that he now lives in Escalon, California, having lived earlier in Weatherford, Oklahoma. II App. 527. Macsenti was having some difficulty with one tooth that had "gone bad" on him in June of 1996. He learned about defendant from a phone book ad and called his office. After some delay, he had a brief visit that night with Dr. Becker who told him about root implants. Id. at 531. It was agreed he would return to California and would call for an appointment when he returned. The appointment was scheduled for July 15, 1996 and Macsenti arrived at Dr. Becker's office a little before 9:00 a.m. Id. at 534.

He was given some medications by Dr. Becker's stepdaughter, Heather Davis. Id. at 534. His memory was poor about the events that followed. He had some sensations of a jarring that got his attention, a pinching on his lip, and a hurting. Id. at 535. He remembered some conversations about coffee and some giggling at some point. Id. at 535.

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